Court of Appeal: Rural development partnership loses appeal challenging award of €1.2m public contract

About this case:

• Citation:
  [2018] IECA 235
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian McGovern

Background

The appellant, Forum Connemara Ltd is described as ‘a rural development partnership of voluntary, community and statutory bodies’ established in 1990 with the main objective of ‘putting in place of programmes to tackle problems of rural decline and peripherality in the Connemara area’. 

The respondent, Galway County Local Community Development Committee (Galway LCDC) administers the Social Inclusion and Community Activation Programme (SICAP) aimed at tackling poverty and social exclusion in disadvantaged communities, which originally had been divided into two administrative areas – implemented by Forum Connemara and another company.

In 2014, Galway LCDC decided that there should only be one SICAP service provider going forward. Forum Connemara submitted a tender for the €1.2 million SICAP contract, but was unsuccessful.

High Court

In August 2016, Forum Connemara sought judicial review of the determination of  Galway LCDC under Order 84A of the Rules of the Superior Courts 2010, challenging the decision to award the entirety of the public contract to another applicant.

Delivering the judgment of the High Court, Mr Justice Hedigan stated that the tender process had been carried out on a level playing field, and that Forum Connemara had been given adequate reasons for their tender being unsuccessful. Refusing all reliefs sought, Justice Hedigan stated that he could not find anything ‘manifestly wrong’ with Galway LCDC’s decision process that led to Forum Connemara being unsuccessful in its tender.

Court of Appeal

In the Court of Appeal, Forum Connemara submitted two grounds of appeal: locus standi and adequacy of reasons.

Forum Connemara challenged whether the legal team for Galway LCDC had instructions to defend the proceedings, arguing that Galway LCDC had not demonstrated that they had taken the decision and/or lawfully given instructions to defend the proceedings. Specifically, it was submitted that Galway LCDC was unable to show that:

1. The matter was discussed by the statutory committee
2. The defence of the proceedings was authorised
3. The motion to enter into the Commercial Court was authorised
4. The application to have preliminary issues dealt with in the Commercial Court was authorised.

Justice McGovern said that the locus standi argument had first been heard by Justice Barrett in a motion brought by Galway LCDC to strike out the judicial review proceedings. Although Justice Barrett did not explicitly address the issue – extensive argument by Forum Connemara and a response from Galway LCDC on the issue had been heard. In the High Court, Justice Hedigan viewed the issue of locus standi as having been implicitly decided by Justice Barrett due to the fact that he went on to hear the application on whether or not to strike out the proceedings. Justice Hedigan said that this was consistent only with the view that Galway LCDC did have standing to defend the proceedings.

In the Court of Appeal, Forum Connemara finally settled on the argument that the decision to defend the proceedings was a reserved function; however Justice McGovern said that the power to defend proceeding was authorised by s.153(1)(b) of the Local Government Act 2001, and that this was clearly an executive function. Stating that there was no point of substance in Forum Connemara’s locus standi argument, Justice McGovern was satisfied that the decision to defend the proceedings was one taken by virtue of the powers under the Local Government Act 2001.

Considering the argument that inadequate reasons were given by Galway LCDC for its decision not to award the contract to Forum Connemara, Justice McGovern was satisfied that there were, in fact, bespoke reasons given for the decision. Rejecting the appeal on this ground, Justice McGovern said that Justice Hedigan’s finding that the reasons ‘went beyond any general requirement’ could not be challenged.

Galway LCDC argued that the appeal was now moot – however Justice McGovern said that it wasn’t necessary to decide that issue given that the appeal had been dismissed on both grounds raised by the Forum Connemara.

• by Seosamh Gráinséir for Irish Legal News